Torturing First Amendment poor solution to campaign finance problems

Article date: May 6 2014

Kelly Sloan

For the record, I’m in favor of the First Amendment guarantee of free speech, with the usual and, I should think, reasonable exceptions (the clichéd but relevant prohibition against yelling “fire” in a school or crowded theater or showing pornography in either venue, for example).

I think it’s accurate to say no one in America, at least publically, would declare outright against freedom of speech. I think it’s just as accurate, however, to conclude there are many on the American left whose patience with the First Amendment atrophies when it fails to conform to their ideological playbook.

Hence the Constitutional amendment proposed by U.S. Sens. Chuck Schumer (D-NY) and Mark Udall (D-Here) in response to liberal indignation over the Supreme Court rulings in favor of free speech in McCutcheon and Citizen’s United. The proposed amendment would give Congress virtually unlimited power to institute campaign finance laws in defiance of court decisions dating back to at least the 1976 ruling in Buckley v. Valero, which struck down many of the restrictions Congress had tried to put in place in the 1971 Federal Elections Campaign Act.

We are all familiar with the arguments — that money does not equal speech, corporations are not people, etc. These arguments are easily shot down. What constitutes corporations (or unions, for that matter,) if not people? And if campaign money doesn’t equal speech, what use is it to a campaign? And what to make of the argument de-limiting campaign contributions and expenditures allows only the rich and powerful to have a voice? If money doesn’t equate to speech, how would having more of it give one a greater voice?

It’s useful to the discussion to consider the argument in terms of freedom of the press. The oft-stated goal of campaign finance laws is to equalize and level the political playing field. Should the same rules apply to the media? The New York Times, even in this era of declining newspaper readership, remains a powerhouse in the media world.

The Business Times, for instance — trust me — can’t begin to come up with the resources to compete with the New York Times. Similarly, someone once pointed out that should an author receive a bad review in the New York Times, there’s not a publisher alive that could hope to compile the cash necessary to mount an effective counter. Does it follow there should there be an equalizing law to limit the Times’ influence and reach?

Schumer made a great show of explaining how no right is absolute, as a way of conceding that, yes, campaign finance laws restrict speech, but that’s OK, because the right to free speech has limitations.

Now let’s all please agree that, yes, of course, no right is “absolute.” This isn’t an epiphany. The Second Amendment doesn’t provide for the private ownership of nuclear weapons, for instance. And the Fourth Amendment doesn’t exempt someone reasonably suspected of possessing stolen goods from arrest. As I pointed out in a column last year, some rights, if reduced to being exercised in absolute form, will unavoidably conflict with other rights — freedom of the press and its effect on one’s right to a fair trial, for example. And, as I mentioned in the opening paragraph, there are indeed some generally accepted limitations to free speech. But recognizing the hazards of absolutism ought not be construed as an excuse for committing any offense one wishes against the rights delineated in the Constitution.

Incidentally, campaign finance laws aren’t the only avenue through which the American left seeks to limit speech.

The entire concept of “political correctness” and the habit of declaring debate over and done with on a gestating list of issues –—climate change, affirmative action, the ‘right’ to conception, gay marriage, Obamacare and so on — especially through the mechanism of branding dissenters with the marks of “racist,” “sexist,” “homophobe” and “denier” have as pernicious an effect on free speech as Schumer and Udall’s amendment would. As does the uneducated and infantile response of Rutgers students and faculty to an invitation to Condoleeza Rice to speak at commencement.

This, paradoxically, from the political wing that cried “censorship” at any suggestion that pornography might not be appropriate for the eyes of 12-year-olds.

There is, of course, a better solution to whatever problems might arise from large infusions of money into federal politics than torturing the First Amendment. If the influence of Congress over the daily life of the country was appropriately reduced, there would be a concurrently reduced need to exercise one’s First Amendment right to influence Congress.

Kelly Sloan is a Grand Junction resident, freelance journalist, small business owner and Centennial Institute fellow on energy and economic policy. He specializes in public policy and political communications.